Hyman v. Jones, 205 N.C. 266 (1933)

Oct. 11, 1933 · Supreme Court of North Carolina

205 N.C. 266

CASSANDRA HYMAN v. ELLA JONES et al.

(Filed 11 October, 1933.)

Limitation of Actions Ad: O c — Execution on decree fox- owelty is barred in ten years and bar is unaffected by uncompleted execution.

Tbe issuing of execution on a decree charging owelty in partition is barred by tbe ten-year statute of limitations, tbe lien upon lands of a docketed judgment being barred after tbe lapse of ten years from tbe date of docketing, and tbe bar of tbe statute is unaffected by tbe beginning of an execution wbicb is not completed by sale prior to tbe expiration of tbe ten years, an execution adding nothing to tbe life of tbe lien of tbe judgment.

Appeal by defendants from Moore, Special Judge, at April Term, 1933, of MaetiN.

Civil action to restrain sale under execution issued on judgment for owelty on tbe ground tbat tbe lien of said judgment bad been lost by tbe lapse of time and tbat sale thereunder was barred by tbe ten-year statute of limitations.

In tbe actual division of tbe lands of tbe late Islimael Hyman, Lot No. 2, allotted to Z. H. Hyman, was charged with an owelty of partition in tbe sum of $700 in favor of Ella Jones. Judgment of confirmation entered 31 January, 1923. Execution was issued on this judgment 16 January, 1933, levy duly made prior to 31 January, 1933, and tbe land was advertised for sale on 6 March, 1933. Plaintiff, who acquired tbe interest of Z. H. Hyman in said lot at foreclosure sale in 1931, enjoined tbe sale on tbe ground tbat tbe lien of said owelty judgment was unenforceable after tbe lapse of ten years.

From a judgment for plaintiff, tbe defendants appeal.

B. A. Grilcher for plainliff.

Jos. W. Bailey for defendants.

Stacy, C. J.

It is settled by tbe decision in Smith ex parte, 134 N. C., 495, 47 S. E., 16, tbat tbe issuing of an execution on a decree charging owelty in partition is barred by tbe ten-year statute of limitations. See, also, Newsome v. Harrell, 168 N. C., 295, 84 S. E., 337, and Cochran v. Colson, 192 N. C., 663, 135 S. E., 794.

It is likewise settled by a number of decisions, notably Lytle v. Lytle, 94 N. C., 683, Lyon v. Russ, 84 N. C., 588, and Pasour v. Rhyne, 82 N. C., 149, tbat tbe lien upon lands of a docketed judgment is lost by tbe lapse of ten years from tbe date of tbe docketing, and this notwithstanding execution was begun, but not completed, before tbe expiration of tbe ten years. Tbe only office of an execution is to enforce tbe lien of tbe judgment by a sale of tbe lands, and this must be done before tbe lien is lost. Tbe execution adds nothing by way of prolongation to tbe life of tbe lien.

Tbe judgment, therefore, in tbe instant case is accordant with tbe decisions.

Affirmed.